Opinion
XX/11
11-23-2011
In the Matter of a Custody/Visitation Proceeding, T.G., Petitioner, v. A.W., Respondent.
The Petitioner was represented by Caroline Bersak, Esq. from the Family Center. The Respondent was represented by Jennifer Hudson, Esq. - Union Counsel for Local 237. The child was represented by Elliot Podhorzer, Esq.
, J.
In this proceeding brought pursuant to Article 6 of the Family Court Act (hereinafter "FCA"), the Petitioner, T.G. (hereinafter "Petitioner"), seeks custody of his sister, T.W., age 10 (hereinafter "child"). The Respondent, A.W., the child's father (hereinafter "Respondent") subsequently filed a cross-petition for custody having previously withdrawn a petition seeking Letters of Guardianship.
This matter was set down for a hearing as to whether extraordinary circumstances exist which would require that the issue of custody be determined on the basis of the best interests of the child. That hearing was conducted on May 18, 2011, August 9, 2011 and August 10, 2011. Post-trial briefs were filed by the parties and the Attorney for the Child on October 5, 2011.
Findings of Fact
The subject child was born on September 19, 2001 to P.G. and A.W. P.G. died on July 12, 2010. The testimony adduced at trial shows that The child lived with both of her parents until 2004 at which time the Respondent moved out of the home. The Petitioner, age 33, is the child's older brother, both having been born to P.G. He is not related to the Respondent. The child has lived with the Petitioner for all of her life but for a six month period. Even during the time period when the Petitioner had moved, he continued to see the child on a daily basis as he lived a short distance from her home. The Petitioner credibly testified that he and his mother were the child's primary care-givers, that he assisted his mother throughout the child's life and that he has continued in that role since his mother's death. The Petitioner filed for custody of his sister almost immediately after his Mother passed away.
At the commencement of these proceedings, the Court ordered visits between the child and the Respondent. Previously, there had been no regular visitation schedule in place. Visits have since been expanded and the child now has weekly weekend overnight visits with the Respondent.
The Court had the opportunity to observe the parties over several days of trial and as such was in the unique position to assess the credibility of the parties. While both parties testified as to the Respondent's involvement with the child throughout her life, the Court credits the testimony of the Petitioner. The Petitioner testified that after the Respondent moved from their home in 2004 he would visit with the child but that as time went on their visits became more infrequent. This is consistent with the initial orders in this case where no overnight visitation was ordered because the child was not initially comfortable with spending extended periods of time with the Respondent.
The Petitioner credibly testified that in the year before his mother died, the Respondent only saw the child once. He further indicated that the Respondent and the child had infrequent phone contact. Despite the Respondent's claims of a close relationship with his daughter, this was not evidenced during this proceeding and it was not supported by the in camera interview with the child. The Court also notes that prior to this proceeding, the Respondent never filed for visitation with The child so that he could see her on a regular basis.
Conversely, it was demonstrated that the child has enjoyed a strong bond with her brother for her entire life. It is clear that she wishes to remain with him in what she views as her home and that it is important to her to be surrounded by the same family that she has grown up with. She has seen her brother almost every day of her life making him a constant in her life. He has not only been her brother, but he has assumed the role of her caretaker. While the bond between the child and her brother existed throughout her young life, it was only strengthened after her mother's death. The Petitioner has stepped in to provide the child with comfort, support and stability. He understands the child and has been sensitive and responsive to her needs in this difficult time after her mother's death.
The evidence adduced at trial shows that the Respondent has had a significant history of domestic violence. In 2006, there was a substantiated child neglect case against the Respondent in relation to another daughter of his who was 14 years old at the time. The allegations were substantiated for "choking/twisting/shaking" and inadequate guardianship. In 2008, the Respondent was again investigated by the Administration for Children Services (hereinafter "ACS"). The investigation centered around allegations made with respect to the children of the Respondent's paramour and the mother of his now three years old son. In this instance, allegations of "choking/twisting/shaking" were substantiated as were allegations of excessive corporal punishment and inadequate guardianship. There were also allegations made against the Respondent's paramour, which included the claim that she pointed a gun at the head of one of the children. The allegation of inadequate guardianship was substantiated against her as well. Ultimately, a finding of neglect was made by the Queens Family Court against the Respondent and his paramour. The two children were removed from the home and placed in foster care. The Court never returned the children to the home.
An order of protection was issued against the Respondent in favor of the two children during the course of the child protective proceedings. The Respondent testified that at some point there had also been an order of protection issued against him and in favor of another child, his daughter Emily. While the Respondent did engage in services as referred by ACS, he showed little insight into his actions and his ability to parent children. The Court did not find the Respondent's denial of an argument between him and his paramour's children in the 2008 case to be believable, especially in light of the fact that he subsequently admitted to having called the police and that a finding of neglect had been made.
While the Respondent addressed what he learned in anger management and parenting classes, he spoke only as to yelling at children and did not mention or seem to have gained any insight into the gravity of the issue of domestic violence or the use of excessive corporal punishment on children. Indeed, the ACS Child Protection Specialist involved with the family, who testified at trial, indicated that he never acknowledged any of the allegations against him in the child protection proceedings despite the case being brought against him, the children being removed from the home and the neglect finding.
Conclusions of Law
It is well established that there is a fundamental right of a parent to raise, rear, and direct the upbringing of a child. Troxel v. Granville, 530 U.S. 57, 65 (2000). In a custody dispute between a biological parent and a non-parent third party, parental custody may not be denied absent a threshold showing of extraordinary circumstances. Thus, the Court cannot deny a parent the custody of a child "absent surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances." See Matter of Bennett v. Jeffreys, 40 NY2d 543, 544 (1976). The non-parent third party must bear the burden of proving that extraordinary circumstances exist. Even if extraordinary circumstances are proven, such a determination alone will not justify depriving a natural parent of the custody of the child. Rather, the Court must then make the determination that it is in the best interest of the child. Matter of Bennett v. Jeffreys, supra at 544-548.
The Court has enumerated certain factors which would support a finding of extraordinary circumstances, such as the protracted separation between parent and child, as well as the attachment of the child to the custodian. Matter of Bennett v. Jeffreys, 40 NY2d at 544. It has been found that lack of involvement in the child's life may warrant a finding of extraordinary circumstances. Matter of Shemeek D. v. Teresa B., 2011 NY Slip Op 08489 (1st Dept. 2011), citing Matter of Bennett v. Jeffreys, supra and Matter of Iris R. v. Jose R., 74 AD3d 457 (1st Dept. 2010).
Similarly, in the case of Curry v. Ashby, 129 AD2d 310, 318 (1st Dept. 1987), the Court found extraordinary circumstances where the child's:
" . . . welfare would be drastically affected, and that she would sustain a significant emotional injury, with a clear possibility of ongoing harmful consequences, if she were to be separated from the brother with whom she has lived most of her life, and to whom she is bound by the most profound feelings of affection and intimacy, and if she were to be removed at an emotionally vulnerable time in her life from a home in which she and her brother found emotional security in the aftermath of their tragic loss, to live with a parent with whom she had not lived for many years prior to her mother's death, and with whom she may never in fact have lived."Extraordinary circumstances have also been found where a parent has a history of child neglect and domestic violence. Matter of Antoinette M. v. Paul Seth G., 202 AD2d 429 (2nd Dept. 1994). See also, Alfredo S. v. Nassau County Department of Social Services, 172 AD2d 528, 533 (2nd Dept. 1991).
The Court finds that the Petitioner has established by the preponderance of the evidence that extraordinary circumstances exist in this matter. The Petitioner demonstrated that there is a close bond between himself and his sister having been a primary care giver for her for all of her life. They provided emotional support to each other while their mother was dying and after her death. He has provided the child with a stable, nurturing, and supportive home environment and she has thrived while in his care. Their mutual feelings of love and affection for each other were evident during the course of these proceedings.
The record demonstrates that, prior to the commencement of the proceeding, the Respondent had limited visits with the child, only seeing her once in the year prior to her mother's death and had infrequent phone contact with her. Notably, the Respondent never moved for visitation with the child and has not provided any financial support for the child while she has been in her brother's care.
Further, it is of great concern that the Respondent does not appear able to recognize the child's close attachment to her brother. Throughout these proceedings, he has shown little ability to understand the child's emotional needs in light of her Mother's death. He does not appear to recognize that there could be a significant emotional impact to the child if her brother's role in her life was drastically diminished.
In addition, the Court finds the Respondent's prior history of domestic violence, two indicated cases by ACS, the final orders of protection issued against him and in favor of three different children and the child neglect finding all support a finding of extraordinary circumstances in this case. Both of the indicated cases by ACS involved serious child safety issues. It is of equal concern that the Respondent does not appear to have gained any insight from these incidents or from the Family Court findings of neglect against him.
Accordingly, the Court finds that extraordinary circumstances do exist in this matter which warrant a determination of the best interests of the child. This matter is set down for a conference on _____________________________ to set dates for further proceedings.
This constitutes the decision and order of the Court.
Dated: New York, New York
November 23, 2011
ENTER:
___________________________
HON. LORI S. SATTLER
Judge of the New York County
Family Court